Wong v. Bell, No. 79-3279

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WALLACE and FERGUSON; FERGUSON
• Citation: 642 F.2d 359
• Parties: Shui King Tam WONG, Gong Yuen Wong, Wing Sun Wong, Plaintiffs-Appellants, v. Griffin B. BELL, Attorney General of the United States et al., Defendants-Appellees.
• Docket Number: No. 79-3279
• Decision Date: 20 April 1981

Page 359

642 F.2d 359 Shui King Tam WONG, Gong Yuen Wong, Wing Sun Wong,
Plaintiffs-Appellants,
v.
Griffin B. BELL, Attorney General of the United States et
al., Defendants-Appellees. No. 79-3279. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Feb. 6, 1981.
Decided April 20, 1981.

Page 360

Robert L. Miller, Miller & Miller, Los Angeles, Cal., on briefs, for plaintiffs-appellants.

Lawrence B. Gotlieb, Asst. U. S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and FERGUSON, Circuit Judges, and MARQUEZ, ^* District Judge.

FERGUSON, Circuit Judge:

Plaintiffs challenge defendants' refusal to allow plaintiff Wing Sun Wong into this country. They claim that 8 U.S.C. § 1182(i) entitles Wong to have the Attorney General exercise his discretion as to whether or not to admit Wong. We affirm the dismissal of plaintiffs' lawsuit on the ground, not ruled on below, that plaintiffs' complaint did not state a claim pursuant to which relief could be granted under Fed.R.Civ.P. 12(b)(6).

I.

Wing Sun Wong lives in Hong Kong. He applied to the American consulate there for a visa in 1958. In his application, he made misrepresentations which barred issuance of a visa. In 1969, he again applied to the consulate in Hong Kong for a visa, which was denied because of the prior misrepresentations. Finally, in 1977, Wong applied for a waiver of excludability under a section of the Immigration and Nationality Act which provides:

Any alien who is the spouse, parent, or child of a United States citizen or of an alien lawfully admitted for permanent residence and who is excludable because (he sought to procure a visa by misrepresentation) may be granted a visa (within the Attorney General's discretion.)

8 U.S.C. § 1182(i). The term "child" is in turn defined, for purposes of § 1182(i), as "an unmarried person under twenty-one years of age ...." 8 U.S.C. § 1101(b)(1). The Hong Kong district director of the Immigration and Naturalization Service ("INS") denied the application, finding Wong statutorily ineligible for a waiver under § 1182(i) inasmuch as he was 41 years old at the time of his application.

Wong's brother is a United States citizen. His mother is a permanent resident alien lawfully admitted into this country. Wong and his two relatives instituted suit in district court challenging Wong's exclusion; their request for relief was limited to "an adjudication of rights and duties arising

Page 361

under 8 U.S.C. § 1182(i) ...." The court dismissed plaintiffs' cause of action, having found the brother and mother without standing to sue and having determined that the alien could not maintain the action against the named defendants in the Central District of California. We affirm the dismissal on the basis of Fed.R.Civ.P. 12(b)(6).

II.

A. The parties to this appeal devote their efforts to arguing whether Wong's brother and mother have standing to bring this action. Because resolution of that...